USA > Virginia > Old churches, ministers and families of Virginia, Vol. II > Part 48
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This was rejected December 2, 1778.
October 29, 1778 .- " Some of the people called Seceding Presbyterians" pray that they may thereafter make oath " by holding up the right hand" only; which petition was granted.
November 10, 1779 .- " Divers of the freeholders and other free inhabit- ants of Amherst county"-who afterwards describe themselves as " com- posed of Church of England men, Presbyterians, Baptists, and Method-
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ists"-" unanimously and with one voice declare their hearty assent, con- currence, and approbation of the Act of January, 1779, declaring all Church-laws null, and the Act of Religious Freedom the true exposition of the Bill of Rights." Signed by a great number. Many for and against.
May 12, 1780 .- Sundry inhabitants of Amelia pray that marriage- licenses shall not continue to be directed, in the old form, to Episcopal ministers ; that certain persons therefrom doubted the validity of marriages by other than the Episcopal clergy : they pray that the ceremony "without the use of the ring and the service" may be declared lawful. Successful. It led to the bill legitimizing children of all such marriages by Dissenting ministers. The Baptist Association at Sandy Creek, Charlotte, petition for the same. Also other Baptist associations.
`November, 1780 .- Petition and counter-petition of the inhabitants of Cumberland. The Presbyterians pray the Assembly to declare all non- juring clergymen incapable of preaching. The Episcopalians indignantly declare the Presbyterians "disorderly and turbulent, desirous of giving laws to all societies," and fond of noise and violence. The real object of their (the Presbyterians') petition, the memorialists say, is to ruin the Rev. Christopher MacRae, who, although prevented by conscientious scruples from taking the oath, is a most benevolent man, a pattern of piety, and one who wishes liberty and happiness to all mankind. The ruin of the Church in Cumberland is declared to be the ultimate object of the Presbyterians.
November 22, 1781 .- Sundry inhabitants of Prince Edward county pray that all the old vestries may be dissolved by Act of Assembly and new ones elected by the body of the community at large, Dissenters to be equally competent with conformists to the post of vestrymen, and the sole proviso to be "attachment to the present form of government." Referred to next Assembly, and, June 9, 1782, rejected.
November 12, 1784 .- The Hanover Presbytery pray that there may be no incorporations, and, if a general assessment is decided upon, that it may be as liberal as possible.
June 4, 1784 .- The Protestant Episcopal clergy file their memorial.
From this time-that is to say, the date of the Act of "Religious Freedom"-the enemies of the Establishment redoubled their efforts to overthrow the last vestiges of its former power and usefulness. The peti- tions are throughout of this description, and need not be particularly referred to. The concessions of the Assembly had evidently given them hope and resolution, and they seem to have employed every possible means in their power to cast discredit on the Episcopacy.
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During the same period, the petitions from parishes praying a dissolu- tion of old, inanimate vestries and a sale of unoccupied glebes indicate that the Establishment was almost at its last gasp. There are great num- bers of these petitions. The foregoing is the conclusion which will be arrived at from reading them. It is not necessary to publish them.
No. VIII.
DR. HAWKS'S OPINION ON THE GLEBE CASE, TAKEN FROM HIS WORK ON THE CHURCH OF VIRGINIA.
[I had intended to examine for myself the question of the constitution- ality of the law for selling the glebes so far as to form and express an opinion on the subject, though it would have been of very little worth ; but want of time, and the reading of this and the next number of the ap- pendix, containing Dr. Hawks's candid statement of the case and Judge Story's able opinion, have led me to a course which will, I am sure, be greatly preferred by all my readers. I do not hesitate to say that I have always inclined to the belief that the Act was unconstitutional. I have long laboured, but in vain, to obtain the opinion of Judge Pendleton, which was to have been delivered the day after his sudden death, and which would have decided the question in favour of the Church. I hope it may yet be found. At the same time, I must declare that I have always rejoiced in that Act of the Assembly, so far as the Church was concerned. Such has also been the feeling of almost all our clergy and laity with whom I have ever conversed. Could we have had the glebes restored to us by a decision of the courts, or even by the Act of Assembly, we should have opposed the effort ; it being injurious to the cause of religion in our own Church and in the State. The history of the glebes and glebe-houses in Virginia has, from first to last, been a most mortifying one. With comparatively few exceptions, as may be seen on the old vestry-books, they were not worthy of the residence of our ministers, and, for the most part, were rented out for very small sums of money-even for forty, thirty, and twenty shil- lings-or surrendered to vestries on condition that the casks or hogsheads for the tobacco were furnished. When the salaries were withdrawn, only a few of the glebes held out any inducement to the incumbents to remain, as the voluntary contributions were very small and often nothing at all. For these few the Episcopalians earnestly contended, and for their sale some other denominations as earnestly sought. I doubt not that there were those who advocated their sale from a sincere conviction that it was re- ligiously and politically right, while it cannot be doubted that, in many instances, sectarian feeling and political ambition had much to do with it.]
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As to the arguments by which a sale of the glebes was urged upon the Legislature, the principal were as follows :-
1. That most of the glebe-lands were originally purchased with money levied upon the people at large, and that, consequently, whenever a majority of the people desired a sale of the lands, they should be sold and the money applied to such other use as might seem best to them.
2. That if the Church was permitted to retain the property, a certain pre-eminence and superiority was thereby conferred, which was odious in a republic and inconsistent with its institutions.
3. That the fourth article of the Declaration of Rights of Virginia as- serted, " That no man or set of men are entitled to exclusive or separate emoluments or privileges but in consideration of public services;" but the enjoyment of the glebes did confer upon the Church "exclusive emolu- ments from the community," and was consequently unconstitutional.
To the first of these arguments it was answered that some of the glebes were a private donation; that those which were purchased were bought many years before,-some of them more than a century,-and that the "people" with whose money the purchase was made were not Dissenters, (for there were few or none in the Colony at that day,) but were members of the Establishment, and perfectly content that their money should be thus applied ; that, having been thus applied, the "people" had voluntarily divested themselves of it, and their descendants could not now take it back, any more than they could other moneys of which their ancestors had seen fit willingly to deprive themselves : it was also answered that, upon this principle of a restoration to the "people" of money which the "people" once gave, there should obviously be returned no more than such a part as would be proportionate to the original number of Dissenters among the people who purchased ; for, if those who now asked for a sale of the glebes had, from conscientious motives, dissented from the faith of their fathers, they should thence learn that their fathers also had consciences, and with no justice or propriety could they seek to undo what their ancestors had done with a good conscience. But, as to Dissenters among the ori- ginal purchasers, there were either none at all, or, at best, the number was very limited, and it was certain that there were no Baptists among them.
It was also asserted to be very questionable whether, considering the great emigrations to the Western country and to other States, there was one-third of the inhabitants remaining whose ancestors had contributed to purchase a glebe; that, if they were sold for the benefit of that third, it would be impossible to ascertain to whom the proceeds should be paid. If it should be urged that "the country" first purchased them, and that now they should be given back to "the country," then it was to be remembered that that country by a solemn Act had declared that "in all time coming" they should not be taken from the Church; and that if it would be unrighteous in an individual to take back by mere force that which he had once bestowed
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. upon another, it required no small skill in casuistry to prove that similar conduct was righteous in a State.
As to the second argument, it was said in reply that the question of permitting the Church to retain the property was one of right, founded on law, which republics were emphatically bound to respect. That by the very law which released Dissenters from all taxes to support the Episcopal Church, the Assembly of Virginia had pledged its legislative faith-the most solemn pledge and firmest sanction which a free State could give-that the property in dispute should "in all time coming" be saved and reserved to the use of the Episcopal Church. That to order a sale of property thus solemnly reserved would tend to sap the foundation of those rights by which property in general is held, introduce into the Acts of the Legisla- ture instability and uncertainty, exhibit a fluctuation in law unprecedented in Virginia, and overturn that confidence and security which the citizens of a republic should always feel in the stability of purpose avowed by their selected representatives. It also said that, if pre-eminence and superiority in the Church were evils justly dreaded, a declared preference for any other religious denomination was no less to be deprecated; and that, if the glebes were sold to gratify any sect or party, a distinction would be so far manifested in its favour, and would tend to furnish it, in this patronage of the State, with the means of establishing its own creed upon the ruins of every other.
To the argument of unconstitutionality as deduced from the Declaration of Rights the answer was that " the community" under the Government established after the Revolution certainly had granted to the Church no exclusive emoluments," for it had granted nothing: it had only confirmed to the Church that which she had and owned and enjoyed for more than a century before. But, in truth, the fourth article of the Declaration of Rights had no bearing upon the question, as was evident when the whole of it was viewed together. The article declared "that no man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary,"-thus showing simply an intention to prevent hereditary honours, offices, or emoluments in the civil government.
These are the principal arguments and answers which from time to time were presented to the Legislature upon the question of a sale of the glebes generally : there are to be found also among the memorials and remon- strances some which concern the sale of a glebe in some particular parish only; and these afford additional considerations for and against the measure, founded upon the peculiar circumstances of each case, and possessing no general interest.
Bishop Madison, in the exercise of the discretion confided to him by the Convention of 1796, submitted to the Legislature of that year the memorial touching the sale of the property of the Church. It was not
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acted upon by the Assembly ; but the subject, according to some former precedents in matters concerning the Church already recorded, was sub- mitted to the consideration of the people. Episcopalians began now to think that their only mode of saving the globes was, if possible, with the concurrence of the Legislature, to draw the determination of the question from before that tribunal and submit its decision to the courts of law. With the concurrence of the standing committee, the Bishop therefore resolved to obtain professional advice, and an opinion was sought at the hands of some of the ablest jurists of Virginia. Bushrod Washington, Edmund Randolph, and John Wickham were consulted, and, as the result of their deliberations, stated :-
1. That the Protestant Episcopal Church was the exclusive owner of the glebes.
2. That so far was the title of the Church from being impaired by the Bill of Rights, that on no sound construction did they clash ; but that the title of the Church stood upon precisely the same grounds with the rights of private property, which had been recognised and secured by the prin- ciples of the Revolution and by the Constitution.
3. That any question concerning the right of property in the glebes could constitutionally be decided by the judiciary alone.
Having obtained this opinion, the Bishop called together the Conven- tion in December, 1797, and, in his address, directing their attention to the Church property, laid before them the opinion just recited.
The Convention appointed a committee to attend the discussion of their memorial before the Legislature, and instructed them to propose to that body that the controversy should be submitted to the decision of a proper tribunal of justice.
The task becomes truly painful of following through the ecclesiastical records of this period the gradual but sure descent of the Church from level to level, each a little lower than the former, and of witnessing effort after effort made in vain by her few remaining friends to stay her down- ward course. The picture presented by the Bishop, in one of his addresses about this time, offers to our contemplation a suffering clergy, temples in every stage of dilapidation and decay, and an increasing indifference to the interests of the Church, which told too plainly that the protracted struggle was fast driving Churchmen into the hopelessness of despair.
The last Conventional effort of which we have any record was made in 1799. By a resolution of that year, the Bishop was directed to employ counsel to defend the rights of the Church before the judiciary whenever it should be deemed most proper to bring the question before it; and it is to be presumed that the Church now sat down in patience to await the blow which probably was seen by all to be inevitable. The crisis came at last; and on the 12th of January, 1802, the Legislature passed the law by virtue of which the glebes of Virginia were ordered to be sold for the benefit of the public. The warfare begun by the Baptists seven-and-twenty VOL. II .- 29
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years before was now finished : the Church was in ruins, and the triumph of her enemies was complete.
If there should be those who are disposed to view this law as an illegal encroachment upon the vested rights of the Church, it is proper to remind them of the reasons which satisfied those who enacted it that they were doing right. They supposed that from the beginning the property of the glebes was in the people, not in the clergy; and that, as the number of Episcopalians in the parishes which remained was not a majority of the people, therefore no injustice was done by the Act in question. Many who voted for the law felt compelled to do so by the force of popu- lar opinion.
It was not long after the passage of the Act of 1802 before the Church found it necessary to bring the constitutionality of that law before the proper tribunal for consideration. This was done in the year 1804, in the celebrated case of Turpin et al. vs. Locket et al., commonly known as the Manchester case. The defendants, as overseers of the poor, had undertaken to sell the glebe-lands of the parish of Manchester, under the Act of 1802, and the plaintiffs-who were the churchwardens and vestrymen-filed a bill in Chancery to prevent the sale by an injunction.
The cause finally, by an appeal from the decree of Chancellor Wythe, came before the Court of Appeals,-the highest tribunal in Virginia,- which at that time was composed of Judge Pendleton, the President, with Judges Carrington, Lyons, Roane, and Fleming. The last-named gentle- man, however, did not sit in the cause, because he considered himself in- terested in the decision.
As the principles involved in the case were of great importance and the property of the glebes was of much value, it may readily be supposed that the cause excited a deep interest; and, after an elaborate argument, the court declined then giving an opinion and held it under advisement. In the vacation which succeeded, Judge Pendleton prepared his opinion in writing. It was, that the Act of 1802 was unconstitutional, and that the glebes belonged to the Protestant Episcopal Church. But, on the night before the opinion was to have been pronounced, Judge Pendleton died ; and, as Judges Carrington and Lyons were both known to be of a similar opinion, the judgment of the court, but for the death of its President, would have been rendered on the next day for the Church.
After the death of Judge Pendleton, Judge Tucker was appointed to succeed him, and the cause was again argued. The grounds taken were briefly these :- On the part of the defendants it was argued :- 1. That if the Church had power to hold the glebes before the American Revolution, that event destroyed such power; and, upon a dissolution of the former political system, the glebes devolved upon the Commonwealth.
To this it was answered that, by various legislative acts adopted after the change in government, the very framers of the Constitution who adopted these acts conclusively showed that they did not suppose the Revolution had de-
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stroyed the Church : thus, on the very day after the declaration of indepen- dence, the Convention of Virginia altered the Book of Common Prayer, to accommodate it to the change of affairs; and it should here be added that Judges Carrington and Lyons-both of whom were members of the Con- vention of Virginia-declared in their opinion that the destruction of the Church was not supposed at the time to have resulted from the change of government. It was also answered that revolutions are intended to preserve rights, not to take them away; and that alterations in the form of a government do not affect the rights of private property.
2. It was urged that a distinction obtains between a natural person and an artificial body, such as a corporation; that even admitting the rights of the first to be unmolested by a revolution, yet the rights of the latter are thereby lost.
In reply it was said that, as all property was matter of civil institution, and the right to it was not natural, but in all cases created by law, the ground on which private property was held sacred applied as forcibly to a society as it did to an individual.
3. It was argued that the Church, as a society, lost its corporate ex- istence by the Revolution : first, because the King-one of its integral parts-was gone; secondly, because incorporated religious societies were contrary to the sixteenth article of the Bill of Rights ; and, thirdly, because the profits of the glebes were emoluments, which were forbidden by the fourth article.
It was answered that neither of these positions was true.
1. The King never was an integral part of the Established Church, even in England; but, if he were, then a society is not destroyed by the removal of one of its parts, provided enough be left to carry on its operations.
2. The sixteenth article of the Bill of Rights relates simply to the rights of conscience and the mutual charities due from man to man .*
3. The fourth article does not relate to property at all, but to emolu- ments and privileges subsequently to be created in favour of the great officers of government, and refers to magistrates, legislators, and judges only.
Upon the second argument, Judges Carrington and Lyons still retained their former opinion; Judge Tucker concurred in opinion with Judge Roane that the Act of 1802 was constitutional, and that the glebes might be sold; while Judge Fleming, who was known to agree with Judges Carrington and Lyons, still declined, for the reason before given, to sit in the case. Thus the court was equally divided, and, of course, the decree
* The article is in these words :- " That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience ; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each ether."
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below, from which an appeal had been taken, was affirmed ; though it has never yet been determined by a majority of the Court of Appeal in Vir- ginia that the law of 1802 is constitutional.
No. IX.
OPINION AND JUDGMENT OF THE SUPREME COURT WRITTEN AND DE- LIVERED BY JUDGE STORY IN THE CASE OF THE FAIRFAX GLEBE QUESTION AND IN CONTRADICTION TO THE DECISION OF THE VIRGINIA COURTS.
[IT is not known whether the decision was unanimous, or by what ma- jority it passed. Chief-Justice Marshall was in favour of it, but requested Judge Story to draw up the opinion.]
Other considerations arising in this case, material to the title, on which relief must be founded, render an inquiry into the character and powers of the Episcopal Church indispensable.
At a very early period the religious establishment of England seems to have been adopted in the Colony of Virginia; and, of course, the common law upon that subject, so far as it was applicable to the circumstances of that Colony. The local division into parishes for ecclesiastical purposes can be very early traced; and the subsequent laws enacted for religious purposes evidently presuppose the existence of the Episcopal Church with its general rights and authorities growing out of the common law. What those rights and authorities are need not be minutely stated. It is sufficient that, among other things, the Church was capable of receiving endowments of land, and that the minister of the parish was, during his incumbency, seised of the freehold of its inheritable property, as emphati- cally personia ecclesia, and capable, as a sole corporation, of transmitting that inheritance to his successors. The churchwardens, also, were a cor- porate body clothed with authority and guardianship over the repairs of the Church and its temporal property; and the other temporal concerns of the parish were submitted to a vestry, composed of persons selected for that purpose. In order more effectually to cherish and support religious institutions, and to define the authorities and rights of the Episcopal offi- cers, the Legislature from time to time enacted laws on this subject. By the statutes of 1661, ch. 1, 2, 3, 10, and 1667, ch. 3, provision was made for the erection and repairs of churches and chapels of ease; for the laying out of glebes and church-lands, and the building of a dwelling-house for the minister; for the making of assessments and trades for these and other parochial purposes; for the appointment of churchwardens to keep the
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church in repair, and to provide books, ornaments, &c .; and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and proportion levies and assessments, and to purchase glebes and ereet dwelling- houses for the ministers in each respective parish. See statute 1696, ch. 11; 1727, ch. 6; and 1748, ch. 28 .- 2 Tucker's Blackst. Com. App. note M.
By the operation of these statutes and the common law, the lands thus purchased became vested, either directly or beneficially, in the Episcopal Church. The minister for the time-being was seised of the freehold, in law or in equity, jure ecclesia, and during a vacancy the fee remained in abeyance, and the profits of the parsonage were to be taken by the parish for their own use .- Co. Lit. 340, b; 341, 342, b. 2 Mass. R. 500.
Such were some of the rights and powers of the Episcopal Church at the time of the American Revolution; and under the authority thereof the pur- chase of the lands stated in the bill before the court was undoubtedly made. And the property so acquired by the Church remained unimpaired, notwith- standing the Revolution; for the statute of 1776, ch. 2, completely confirmed and established the rights of the Church to all its lands and other property. ยท The statute of 1784, ch. 88, proceeded yet further. It expressly made the minister and vestry, and, in case of a vacancy, the vestry of each parish respectively, and their successors forever, a corporation by the name of the Protestant Episcopal Church, in the parish where they re- spectively resided, to have, hold, use, and enjoy, all the glebes, churches, and chapels, burying-grounds, books, plate, and ornaments, appropriated to the use of, and every other thing the property of, the late Episcopal Church, to the sole use and benefit of the corporation. The same statute also pro- vided for the choice of new vestries, and repealed all former laws relating to vestries and churchwardens and to the support of the clergy, &c., and dissolved all former vestries; and gave the corporation extensive powers as to the purchasing, holding, aliening, repairing, and regulating the Church property. This statute was repealed by the statute of 1786, ch. 12, with a proviso saving to all religious societies the property to them respectively belonging, and authorizing them to appoint, from time to time, according to the rules of their sect, trustees, who should be capable of managing and applying such property to the religious use of such societies; and the statute of 1788, ch. 47, declared that the trustees appointed in the several parishes to take care of and manage the property of the Protestant Episcopal Church, and their successors, should, to all intents and purposes, be con- sidered as the successors to their former vestries, with the same powers of holding and managing all the property formerly vested in them. All these statutes, from that of 1776, ch. 2, to that of 1788, ch. 47, and several others, were repealed by the statute of 1798, ch. 9, as inconsistent with the principles of the Constitution and of religious freedom. And by the statute of 1801, ch. 5, (which was passed after the District of Columbia was finally separated from the States of Maryland and Virginia,) the Le-
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